Giano vs Shambhu

S.S. Grewal, J.

The petitionerwife has filed this petition under Section 482, Cr.P.C. for setting aside the order of Additional Sessions Judge, Hoshiarpur dated 3.7.1987 whereby, on revision, the order granting maintenance of Rs. 150/ p.m. passed by Judicial Magistrate Ist Class, Garhshankar dated 13th March, 1987, was set aside.

The case of the petitionerwife is that she was married to Shambhu, respondent, eight or nine years back. Out of this wedlock two daughters and a son were borne but all of them died. At the time of the birth of her son, her parents gave presents which, however, were not up to the expectations of her husband. Her father being a poor man was not in a position to give more articles. Her husband got annoyed on this account. Subsequently he asked the petitioner to bring Rs. 5,000/ from her parents as he wanted to go abroad. This demand could not be satisfied. Because of this reason, he, her motherinlaw Smt. Pura and Smt. Seeta, his brother''s wife, started beating her almost daily and she was not provided with bare necessities of life. She was also maltreated, as none of her children could survive and her husband and his relations wanted him to remarry. On 27.7.1985 she was again given severe beating by her husband, her fatherinlaw and his brother''s wife. She was able to send a message to her parents through one Piara concerning her maltreatment. Two days thereafter Pritu, Dharma, Nama and Beant from her village came there and asked her husband and his relations also to why were they maltreating her. Instead of showing any repentance, her husband along with other inflicted injuries to Pritu and his other aforesaid companions. She was turned out of the house by her husband on that day and, since then she was living at the house of her father. Thereafter her husband never cared to see her to take her back, nor did he care to maintain her. She pleaded that she had no source of income to maintain herself and she did not own any property, whereas her husband who was running a shop of shoemaking had an income of Rs. 2,000/ p.m. She prayed for grant of maintenance of Rs. 500/ p.m.

The respondenthusband, in his reply, denied the allegations made against him and pleaded that he had neither neglected, nor refused to maintain the petitioner. It was also pleaded that the application was filed with a view to demoralise him and grab the ornaments and cash already taken away by her when she left the matrimonial home of her own accord, in the company of her relations. He also pleaded that he was living with his brother and worked as a labourer. His wife does not want to live with him, or his brother. The allegations of the petitioner concerning the demand of money, or other articles were specifically denied. It was also asserted by the husband that he was ready to maintain the wife provided she lived with him. It was further pleaded that the respondent was earning shoemaking and he hardly earned his livelihood and that he was not in a position to pay any amount to the wife.

I have heard the learned Counsel for the parties and perused the record.

On behalf of the petitionerwife it was contended that the husband and his other near relations harassed, maltreated and gave beatings to her and she was ultimately turned out of the house by the husband who also threaten to kill her; that she apprehended danger to herself and that this aspect of the case constitutes just and sufficient cause for her to live separately from her husband, who had consistently refused and neglected to maintain her. On the other hand, it was submitted on behalf of the husband that all along he has been ready to keep the petitioner with him as his wife and that she withdrew from his company without any reasonable cause. It was further submitted that the husband had never refused, or neglected to maintain his wife.

Testimony of Smt. Giano has rightly been believed by the learned trial Court which had the added advantage of watching the demeanour of the witnesses. Her testimony leaves no manner of doubt that she was maltreated, harassed and given beating by the husband throughout the period she stayed at his house. According to her, after the birth of her son, customary presents were given by her parents but the same were not up to the expectations of her husband. After some time, a demand of Rs. 5,000/ was made by the husband as he required this money for going abroad. Passport for this purpose would be in the possession of the husband. The petitionerwife possibly could not produce any such record. It is also on record that after the death of her three children, her husband wanted to remarry. On this score, the petitionerwife had been subjected to cruelty. Even her relations went to the husband to get the matter compromised but were given beating by him and his companions. This aspect on the case also finds support from the testimony of Dr. Varinder Kumar Kaushal PW1 who conducted medicolegal examination of Nama, Dharma and Pritu from the side of petitionerwife. They had gone to the house of the respondent to effect reconciliation between the parties. In these circumstances, the wife obviously has reasonable apprehension concerning her own safety, in case she goes and lives with husband. Thus, she has just cause to live separately from her husband, and the offer of the latter to keep the former amicably at his house cannot be considered as a genuine offer.

On the other hand, testimony of the husband and that of Bal Krishan RW2 that the petitionerwife had left the house of the husband along with her relations, of her own accord, or, took away ornaments or valuables with her at that time, or about the bona fides of the husband to keep the wife with him amicably does not inspire confidence and has rightly been disbelieved by the trial Court.

Admittedly, no maintenance amount has been given by the husband to the petitionerwife after she was turned out of the home on 27.7.1985. Rather, the respondent has stated that he was not a position to maintain his wife. It is, thus, quite obvious that the respondenthusband has neglected to maintain the wife after she was turned out of the house on 27.7.1985.

The learned trial Court, on the basis of the earning capacity of the respondenthusband, has rightly, awarded maintenance @ Rs. 150/ p.m. to the petitioner from the date of the filing of the application under Section 125, Cr.P.C.

For the foregoing reasons, the order of the Additional Sessions Judge, Hoshiarpur dated 3rd July, 1987, is set aside and that of the trial Court dated 13th March, 1987 is restored. This petition is accordingly allowed.